'Déjà vu' for First Nations women, as Ottawa seeks more time to rid Indian Act of sexism

Elimination of gender-based discrimination from Indian Act long overdue, say First Nations advocates

Indigenous Affairs Minister Carolyn Bennett (left) says she's personally committed to removing gender-based discrimination from the Indian Act once the government completes further consultations, but some First Nations women say the government should act immediately. (Adrian Wyld/Canadian Press)

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​As the federal government seeks more time to remove gender-based discrimination from the Indian Act, some First Nations women say they've waited long enough.

"We're talking about a core fundamental human right, which is the right to equality," said Pam Palmater, a Mi'kmaq lawyer and member of the Eel River Bar First Nation. "They have no choice but to fix it."

The federal government introduced Bill S-3 last October, after a Quebec Superior Court ruled that provisions in the Indian Act discriminate against the descendants of First Nations women, making it more difficult for them to pass on Indian status to their descendants.

The court's decision was based on the case of Stéphane Descheneaux, a member of the Abenaki of Odanak. Descheneaux was unable to pass on his status to his three daughters, because he received it through his grandmother, who lost her status when she married a non-Indian man.

Bill S-3 was intended to address the inequities identified in the Descheneaux decision.

It is the third bill since 1985 aimed at removing gender-based discrimination from the legislation, and in all three instances, the government only took action after being compelled to do so by the courts. But these efforts have been piecemeal, and like the previous bills, S-3 only went so far and excluded women who lost their Indian status before 1951.

In response, the Senate opted to propose an amendment that would remove all gender-based discrimination from the act. Known as the "6(1)(a) all the way solution," the amendment would include women and their descendants currently excluded by the 1951 cutoff date.

With a court-ordered deadline of July 3 looming, Indigenous Affairs Minister Carolyn Bennett has urged MPs to pass the bill without the amendment, promising to launch more consultations within six months to address any gender-based discrimination that remains.

Pam Palmater, a Mi'kmaq lawyer and professor, says the government has no choice but to immediately remove gender discrimination from the Indian Act, having already consulted on this issue for the past 50 years. (Andrew Vaughan/Canadian Press)

But Palmater says the government has already had all the time it needs.

"Canada, and specifically [Indigenous] and Northern Affairs, has been consulting and engaging on the issue of gender discrimination in the Indian Act since the 1970s," Palmater said. "They literally have 50 years of talking to First Nations on this issue."

'It's déjà vu all over again': McIvor

Sharon McIvor has seen this all before.

The B.C. lawyer and member of the Lower Nicola Band first challenged the Indian Act in 1985, just months after some of its most blatantly discriminatory provisions were removed.

Then, too, McIvor said, the government promised to consult further and fix the rest of the act later on.

"As Yogi Berra used to say, 'It's déjà vu all over again,'" she said.

This time, Bennett warned the standing committee on Indigenous and Northern Affairs last week that the Senate's amendment could have "dire unintended consequences." The government says preliminary estimates suggest between 80,000 to two million people could receive Indian status as a result of the Senate amendment, rather than thousands under S-3 as it was written.

"Accepting this amendment — absent adequate consultation and without knowing the practical implications for communities and individuals — would be irresponsible," a statement from the minister's office said.

Nothing more than a stall tactic

To Lynn Gehl, an Algonquin Anishinaabe advocate and writer, the government's plan amounts to nothing more than excuses and stall tactics.

"We have the Charter of Rights and Freedoms in this country to protect people from sex discrimination, but it's not working for us," she said.

Gehl won her own 22-year legal battle against the government earlier this year, fighting for status for First Nations children of unknown or unstated paternity.

Lynn Gehl (left) had to fight 22 years to get Indian status, initially denied to her because she does not know the identity of one of her grandfathers. (Colin Perke/Canadian Press)

While the government could immediately rid the Indian Act of sex discrimination by accepting the amendment, Gehl said, it has instead decided to "confound and confuse" the issue.

"They don't want to end this discrimination," Gehl said. "The ultimate goal is to get rid of status Indians and get rid of treaty rights — so much so, that they'll target women and babies."

Decades of waiting

Bennett said she is personally committed to working with First Nations, organizations and affected individuals on the issue.